Santiago v. State

• Court: Georgia Court of Appeals
• Writing for the Court: McFADDEN
• Citation: Santiago v. State, 12 FCDR 665, 314 Ga.App. 623, 724 S.E.2d 793 (Ga. App. 2012)
• Decision Date: 07 March 2012
• Docket Number: No. A11A2256.,A11A2256.
• Parties: SANTIAGO v. The STATE.

12 FCDR 665

314 Ga.App. 623

724 S.E.2d 793

SANTIAGO

v.The STATE.

No. A11A2256.

Court of Appeals of Georgia.

Feb. 17, 2012.Reconsideration Denied March 7, 2012.

Adam M. Hames, for appellant.

Patrick H. Head, Dist. Atty., Irvan A. Pearlberg, John Richard Edwards, Asst. Dist. Attys., for appellee.

McFADDEN, Judge.

Victor Juan Santiago was convicted of an armed robbery at a fast food restaurant and of aggravated assault upon a restaurant employee working in the drive-through window. He argues that the evidence was insufficient to support the aggravated assault conviction and that he received ineffective assistance of counsel. Because the state presented no competent evidence that the victim was placed in reasonable apprehension of immediately receiving a violent injury, the evidence was insufficient to support the aggravated assault conviction, and we reverse the judgment on that conviction. Because Santiago has not shown that he was prejudiced by any alleged deficiencies of trial counsel, however, we affirm the judgment on the armed robbery conviction.

1. “On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Citation and punctuation omitted.) Goss v. State, 305 Ga.App. 497, 699 S.E.2d 819 (2010).

We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain [whether] the evidence is sufficient to prove each element of the crime beyond a reasonable doubt.... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state's case, the jury's verdict will be upheld.

(Citation omitted.) Vaughn v. State, 301 Ga.App. 391, 687 S.E.2d 651 (2009); see Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence showed that around 11:00 p.m. on April 6, 2001, a man wearing a bandanna over his face and carrying a gun entered the dining room of a fast-food restaurant and shouted for everyone to put their hands up or he would shoot somebody. He also demanded that the people inside the restaurant get onto the floor. During the incident someone called the police, and a police officer arrived at the restaurant while the robber was still inside. The robber, later identified as Santiago, was apprehended. Police officers found in his pockets a note demanding money, receipts from the restaurant, and money belonging to the restaurant. They also found a gun on either a counter or the floor, within arm's reach of Santiago. At the scene, Santiago told one of the officers that he was participating in a “mock robbery” with the knowledge of both the restaurant and its employees.

The jury found Santiago guilty of aggravated assault against the employee who had been working in the drive-through window. The charge of the indictment on which Santiago was found guilty alleged that he committed that offense by “unlawfully mak[ing] an assault upon the person of [the victim] with a handgun, an object which when used offensively against a person is likely to or actually does result in serious bodily injury.” See OCGA § 16–5–21(a)(2).

Central to the offense of aggravated assault is that an assault as defined in OCGA § 16–5–20 be committed on the victim. Under that Code section, there are two ways to commit an assault: when a person attempts to commit a violent injury to the person of another, and when a person commits an act which places another in reasonable apprehension of immediately receiving a violent injury.

(Citations and punctuation omitted.) Adams v. State, 293 Ga.App. 377, 378–379(1), 667 S.E.2d 186 (2008). Santiago argues that there was no competent evidence that the drive-through window employee was aware that he had a gun, and thus no evidence that the employee had been placed in reasonable apprehension of immediately receiving a violent injury. See generally Rhodes v. State, 257 Ga. 368, 370(5), 359 S.E.2d 670 (1987) (the act of pointing a firearm at another does not constitute aggravated assault where the victim is completely unaware that the firearm is pointed at him). We agree.

The drive-through window employee who was the alleged aggravated assault victim did not testify at trial. Two other restaurant employees testified, but neither of them saw what the victim did during the robbery. They did not testify that Santiago pointed or shot the gun at the victim, spoke to the victim, or had any other interaction with the victim. They did not testify that the victim did anything suggesting that he had seen the gun or heard Santiago's threat to shoot somebody, or had any other reaction suggesting that Santiago either had attempted to violently injure him or had placed him in reasonable apprehension of receiving an immediate violent injury.

The only evidence concerning the victim's reaction to the robbery was the following testimony of a police officer:

Q. In the course of your investigation, did you ever determine who called the police?

A. Yes, sir; [the victim].

Q. Were you able to determine how it was that he was able to call the police?

A. Yes, sir.

Q. How was that?

A. He went and climbed out the drive-through window and ran across the driveway into [a neighboring restaurant].

Where “a witness testifies to a conclusion of fact which could be within his knowledge and such testimony is admitted without objection, it cannot be attacked on review as being incompetent or insufficient.” (Citations and punctuation omitted.) Burg v. State, 298 Ga.App. 214, 216–217, 679 S.E.2d 780 (2009). Here, however, other testimony from the police officer made clear that the fact of the victim climbing out of the drive-through window could not have been within his personal knowledge. His testimony that the victim was able to call the police because he had climbed out of the window necessarily implies that the victim climbed out of the window before calling the police. But the officer testified that he did not go to the scene of the robbery until after he received a 911 dispatch. And when asked what he saw when he arrived at the scene, the officer responded: “Initially nothing. So I approached the door to go inside because it's not unusual for them to tie up the store employees and stick them in the cooler or anything like that in the back room. At first, I didn't see anyone, so I started entering the business.” The officer testified that he then saw another employee and Santiago inside the restaurant and proceeded to arrest Santiago.

From the officer's description of what he saw when he arrived at the scene, he did not personally observe the victim climb out of the window; thus, his testimony regarding this event could not have been within his personal knowledge but appears to have been based upon information obtained from some other, unidentified, person or persons. As a result, the evidence that the victim climbed out of the window rested mainly on the veracity and competence of persons other than the testifying officer, making it hearsay. See OCGA § 24–3–1(a); Williams v. State, 279 Ga.App. 83, 85(2), 630 S.E.2d 601 (2006) (officers' testimony that gun was within arm's reach of defendant was hearsay, where officers had not personally observed gun in that location); see also Davis v. State, 289 Ga.App. 526, 527(1), 657 S.E.2d 609 (2008) (officer's testimony repeating statements of victim who was unavailable for trial was hearsay and its admission violated the defendant's right to confrontation). Compare Willingham v. State, 296 Ga.App. 89, 90–91, 673 S.E.2d 606 (2009) (rejecting defendant's claim that no competent evidence showed substance was marijuana where it did not “affirmatively appear that [a witness's] testimony ... was based on hearsay rather than personal knowledge”). That evidence is wholly without probative value and cannot be considered in determining the sufficiency of the evidence. Green v. State, 277 Ga.App. 867, 868(1), 627 S.E.2d 914 (2006).

Indeed, the state does not argue on appeal that the police officer's testimony was competent evidence supporting Santiago's aggravated assault conviction. Instead, the state points to evidence that the drive-through section of the restaurant was close in proximity to the area where Santiago stood and argues that...